Lougee v. Bray

• Citation: 42 Minn. 323,44 N.W. 194
• Parties: LOUGEE v BRAY ET AL.
• Decision Date: 14 January 1890
• Court: Minnesota Supreme Court

42 Minn. 323

44 N.W. 194

LOUGEEvBRAY ET AL.

Supreme Court of Minnesota.

Jan. 14, 1890.

(Syllabus by the Court.)

H. and B. came into an action as intervenors, each by a separate pleading, claiming for himself the property which was the subject of the action, but tendering the same issue as to the facts which constituted plaintiff's alleged cause of action. Held, that a deposition taken on the application of H., and upon interrogatories propounded by him, and cross-interrogatories propounded by the plaintiff, bearing exclusively upon such issue, was admissible as evidence in favor of B. as well as H.

Appeal from district court, Hennepin county; HICKS, Judge.

Little & Hunn, for appellant.

D. W. Ellis, for respondent Jared Briggs.

MITCHELL, J.

The principal question here presented is whether the deposition of the defendant Usher, taken on the motion of the intervenor Herring, and upon interrogatories propounded by him and cross-interrogatories propounded by plaintiff, was admissible in evidence in favor of the intervenor Briggs, and against the plaintiff. The action was brought by the plaintiff, May 18, 1887, to enforce a resulting trust in a piece of real estate for the satisfaction of a judgment which he had obtained against the firm of Beede & Bray on an indebtedness contracted in December, 1886. The land in question had been conveyed in March, 1885, by one Telfer to the defendant Usher, and by Usher conveyed to defendant William L. Bray, May 5, 1887. The ground upon which plaintiff claimed the resulting trust in his favor was that the consideration for the conveyance from Usher to W. L. Bray (alleged to have been $1,500) was paid by George W. Bray. George W. Bray was a member of two copartnerships, to-wit, Beede & Bray, composed of himself and one Richard D. Beede, and Bray & Robinson, composed of himself and one J. W Robinson. In February, 1887, Beede & Bray had made an assignment, under the insolvent law, for the benefit of creditors to the intervenor Herring; and in April, 1887, Bray & Robinson made a similar assignment of all their firm and individual property to one Huntington, who was succeeded as assignee by the intervenor Briggs. Various claims of creditors had been filed and proved under each of these assignments, among those thus proved under the latter assignment being a debt against George W. Bray individually, contracted in 1886, and on which judgment had been obtained. In the inventory of his assets filed in the assignment of Bray & Robinson, George W. Bray included the land in dispute, and W. L. Bray conveyed it (subsequent to the commencement of this action) to Briggs, “assignee of George W. Bray and Joseph W. Robinson.” The two assignees, Briggs and Herring, came into the action as “intervenors,” each claiming the lot as assets of George W. Bray,-Briggs under the assignment of Bray & Robinson, and the deed from W. L. Bray and Herring under the assignment of Beede & Robinson. The issue tendered by plaintiff, as already stated, was that the land was purchased from Usher by George W. Bray, and the consideration paid by him, while the conveyance was made to William L. Bray. Both intervenors, who put in separate pleadings, put this in issue, both claiming that George W. Bray purchased the property of Telfer in 1885, and had the conveyance made to Usher, who paid nothing, and that Usher in May, 1887, at the request of George W. Bray, conveyed to William L. Bray, without any consideration whatever being paid. Hence, although Briggs and Herring each claimed the property against the other, the issue between plaintiff and Briggs, and plaintiff and Herring, as to the nature of the conveyances from Telfer to Usher, and from Usher to W. L. Bray, (upon which plaintiff's rights depended,) was identical, and common to both intervenors. The deposition of Usher related solely to that issue, the substance of it being that George W. Bray had the land conveyed to him by Telfer, that he (Usher) did not pay the consideration, and that he subsequently, at George W. Bray's request, conveyed to W. L. Bray, and that for this conveyance no consideration was received by or paid to him. Upon...